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Overturning Roe Will Not "Return the Issue to the States"

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The RedState.org discussion about how to mask the effects of overturning Roe that Lindsay discusses is indeed useful in undermining the utterly false claim that the Republican position on abortion is popular. In addition to this, however, it shows a key element of the upcoming Republican strategy: to frame the overturning of Roe as a “federalism” issue. This is, of course, utter horseshit:

  • The claim that “[o]overturning Roe wouldn’t do anything but send the issue back to the states” is a flat-out lie. The Republican majority in Congress has, of course, recently passed legislation regulating abortion, claiming authority under the commerce clause; with Roberts joining the Court, this legislation will almost certainly be upheld. Obviously, Roe being overturned would not restrict the ability of Congress to pass abortion legislation. Were Roe to be overturned, abortion would be front-and-center in every Presidential election and every session of Congress for many cycles to come.
  • Even leaving this aside, to claim that Roe is about “federalism” is disingenuous question -begging. The question of the constitutionality of the Endangered Species Act is about federalism–such a case would turn on the enumerated powers of the federal government. Abortion, conversely, is an individual rights issue. If women have reproductive rights that trump state authority, no level of government can ban abortion. If they don’t, any level of government can ban abortion unless prohibited by some other part of the Constitution. Roe is not a case about federalism. Conservatives want to pretend it’s about federalism for the same reason they tried to claim Brown v. Board was about federalism; it’s a convenient way of sweeping an argument you’d rather not make on the merits under the rug.
  • Finally, since many progressives also seem to fall into this trap, it’s worth emphasizing again that it’s not a question of whether a significant number of states would criminalize abortion after Roe were overturned, but exactly how many. A plausible range is 15 to 35. Not all of these laws would ban abortion outright, but the effects of outright bans and vaguely worded delegations to doctors is exactly the same: abortion-on-demand (whether formally legal or grey market) for affluent women and illegal abortions for everyone else. It is entirely possible that the federal government would pass the latter type of law as well.


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